In the Estate of SHIRLEY COLBOURNE HOGBEN (DECEASED) - [2014] SASC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of SHIRLEY COLBOURNE HOGBEN (DECEASED)
[2014] SASC 91
Judgment of The Honourable Justice Gray
7 July 2014
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION - PROBATE OF LOST WILL
SUCCESSION - MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS - PRESUMPTION OF DESTRUCTION OF LOST WILL INTENDED TO BE REVOKED
Application for an order that probate of the deceased’s will, as contained in a copy, be granted to the executors of the will. The deceased executed a will in which she made a specific disposition of $1,000.00 to a football club, but did not dispose of her residuary estate. Following the death of the deceased, the original will has not been found but a photocopy has been located.
Whether the photocopied document should be admitted to probate. Whether the presumption of revocation has been rebutted.
Held (granting the application):
1. The presumption of revocation has been rebutted.
2. Probate of the deceased’s will, as contained in the copy of the will, granted limited until the original will or a more authentic copy is brought and left in the Probate Registry of this Court.
Probate Rules 2004 (SA) r 68 and r 77; Wills Act 1936 (SA) s 8, referred to.
In the Estate of Hall (deceased) [2011] SASC 117; Welch v Phillips (1836) 12 ER 828; In the Estate of Gibbs (2012) 114 SASR 182; Cahill v Rhodes [2002] NSWSC 561, considered.

In the Estate of SHIRLEY COLBOURNE HOGBEN (DECEASED)
[2014] SASC 91
Testamentary Causes Jurisdiction
GRAY J.

This is an application by summons under rule 68 of the Probate Rules 2004 (SA) for a grant of probate of a will as contained in what is said to be a copy of the will. On 8 April 2014, I made an order that the document be admitted to probate limited until the original will or a more authentic copy of it be brought into and left in the Probate Registry of the Court. My reasons for making that order follow.
Shirley Colbourne Hogben, the deceased, died on 9 September 2011 aged 93 years. The deceased died a widow. A statement of assets and liabilities records that the deceased’s estate has a net value of $595,087.18. The applicants in the present proceedings are Kaye Christine Steer, the deceased’s daughter, and Peter Derrick Steer, Mrs Steer’s husband. The applicants are the persons named as the executors and trustees of the deceased’s estate in the propounded document.
Affidavits were filed in support of the application, including affidavits of the applicants and of Margaret Rose Edwards and Ashley Ralph Farrow, the subscribing witnesses to the propounded document. In making the findings recorded in these reasons, I have acted on that affidavit evidence.
The propounded document comprises two pages and appears to be a photocopy of a will made in a will kit form with handwritten additions. In that document, the deceased appoints Mr and Mrs Steer to be the executors and trustees of her estate. Under the heading “GIFTS”, the deceased makes the following specific disposition:
I hereby make the following gifts:
TO PORT ADELAIDE FOOTBALL CLUB
THE SUM OF $1000
“PORT ADELAIDE FOERVER BEQUEST SOCIETY”
A box under the heading “RESIDUARY ESTATE” has been left blank. A box under the heading “FUNERAL DIRECTIONS” has been completed. Both pages of the document contain spaces for the testator and the witnesses to provide their signatures. However, only the second page of the document has been signed by the deceased, Ms Edwards and Mr Farrow. The document is dated 20 June 2010.
Ms Edwards and Mr Farrow have each sworn affidavits of due execution, in which they deposed that the propounded document the subject of the present application is an accurate copy of the original will of the deceased that they witnessed on 20 June 2010. On that date, they were asked by the deceased to attend her home to witness her sign a will. When they arrived at her home, the will was ready to be signed. The deceased did not discuss the provisions of her will and did not mention that she was going to make a photocopy of the will. Ms Edwards and Mr Farrow further deposed that, some five years prior to that date, they had witnessed an earlier will made by the deceased, also in the form of a will kit.
Mrs Steer deposed that, following the death of the deceased, she made a thorough search of the deceased’s home and private papers. The propounded document is the only document of a testamentary nature that was located, there being no indication as to what the deceased did with the original will. Mrs Steer found the document in a cupboard under the deceased’s bed. The only other items found in the cupboard were old photos and photo frames. Mrs Steer identified the handwriting on the document as being that of the deceased. Mrs Steer said that the deceased had kept her other important documents in a concertina file which was found in the linen press of the deceased’s home. She did not know why the propounded document was not kept in that file.
Mrs Steer made enquiries with a bank with whom the deceased had an account. She also placed advertisements in the Advertiser and the Law Society’s In Brief publication in an attempt to locate the original document. However, she was unable to locate any other documents of a testamentary nature.
Mrs Steer further deposed that the deceased had advised her that she had made a new will in which she had provided for a $1,000.00 gift to the Port Adelaide Football Club. The deceased said that she had been an enthusiastic supporter of the Club for all her life and had agreed to make a gift to the Club after a discussion with a representative of the Club. The deceased led Mrs Steer to believe that she had left the rest of her estate to Mrs Steer, but they did not discuss the topic in any detail. On one occasion, Mrs Steer observed a document which she recognised as being the propounded document and noted that it provided for a gift of $1,000.00 to the Port Adelaide Football Club.
Mrs Steer deposed that she had had a good relationship with the deceased. Since 2000, she had lived next door to the deceased and had acted as the deceased’s carer. The deceased had undergone annual aged care assessments and was never assessed as being legally incapacitated. The Court was provided with a copy of the most recent assessment dated 6 December 2010, which recorded the deceased’s cognition as being “[a]lert with some minor memory loss.” Mrs Steer believed that, on 20 June 2010, the deceased had testamentary capacity.
Mr Steer, in his affidavit, confirmed many of the facts deposed to by Mrs Steer. He said that until the date of her death, the deceased was able to manager her own business affairs and was not suffering any mental incapacity. He recalled a conversation that he had had with the deceased about her will. The deceased had said that she was leaving everything to Mrs Steer. On another occasion, she told him that she had made a bequest to the Port Adelaide Football Club.
By summons dated 21 May 2013, the applicants sought a grant of probate of the deceased’s will as contained in the photocopied document. The Registrar of Probates, pursuant to rule 77 of the Probate Rules, has referred the summons to me for consideration.
The summons was brought pursuant to rule 68 of the Probate Rules, which relevantly provides:
68.01An application for an order admitting to proof a nuncupative will made in accordance with section 11 of the Wills Act, 1936, or a will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original will is not available, may be made without notice to any other party to the Registrar by summons in the Form No. 33.
...
68.02The application shall be supported by an affidavit setting out the grounds of the application and by such evidence on affidavit as the applicant can adduce as to -
(a)     the due execution of the will;
(b)     its existence after the death of the testator (or if the will cannot be found at the testator's death such evidence as shall rebut a presumption of its revocation by the testator); and
(c)     the accuracy of the copy or other evidence of the contents of the will;
together with the consents in writing to the application given by all persons who may be prejudiced by the grant:
Provided that if a person who is prejudiced by the application is not sui juris or cannot be ascertained or found, or if the Registrar is satisfied that in the circumstances it is just and expedient to do so, the Registrar may dispense with such consent.
In In the Estate of Hall (deceased), I summarised the considerations relevant to the admission to probate of a copy of a missing will as follows:[1]
[1]    In the Estate of Hall (deceased) [2011] SASC 117, [15].
·    that the original will existed;[2]
·    that the original will was duly executed;[3] or, if the original will does not fulfil the formalities required by legislation, that it satisfies the legislative requirements allowing it, as an informal will, to be admitted to probate;[4]
·    that there is evidence of the terms of the original will;[5]
·    that the copy will is an accurate and complete copy of the original will;[6]
·    that thorough searches have been conducted to find the original will,[7] including publishing advertisements regarding the missing original will;[8]
·    that the original will revoked all pre-existing wills;[9]
·    the circumstances surrounding the absence of the original will;[10]
·    that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris;[11] and
·    that the presumption of revocation does not arise or has been rebutted.[12]
[2]    In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120; Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718; In the Will of Molloy [1969] 1 NSWR 400.
[3]    Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719; In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120; Gair v Bowers (1909) 9 CLR 510.
[4] See for example, section 12(2) of the Wills Act 1936 (SA); see also, Cahill v Rhodes [2002] NSWSC 561, [53]-[55].
[5]    Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719.
[6]    In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[7]    In the Estate of Engelhardt Deceased [2010] SASC 196, [20].
[8]    In the Estate of Roediger Deceased [1967] SASR 118, 120.
[9]    Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718-719.
[10] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[11] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[12] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719; Allan v Morrison [1900] AC 604. ...
In the present proceeding, I am satisfied from the evidence of Ms Edwards, Mr Farrow and Mrs Steer that the will of the deceased dated 20 June 2010 existed and was duly executed in accordance with the requirements of section 8 of the Wills Act 1936 (SA). I am also satisfied that the deceased had testamentary capacity at the time of the making of the will. I am satisfied on the basis of the evidence of Ms Edwards and Mr Farrow that the propounded document is a true and accurate copy of the document that they witnessed on 20 June 2010. Accordingly, there is evidence of the terms of the original will. That will specifically revokes all previous wills and testamentary dispositions made by the deceased.
As earlier mentioned, extensive searches of the deceased’s home have been undertaken. Further, advertisements have been taken out in an attempt to locate any persons with information as to any testamentary documents of the deceased. I am satisfied that reasonable efforts have been made to locate the original will.
As earlier mentioned, the deceased died a widow. If the deceased’s estate were to be administered according to the rules of intestacy, Mrs Steer, as the deceased’s only child, would be the only person entitled to the estate. Mrs Steer is an applicant in the present proceeding. I am therefore satisfied that all persons prejudiced by the application, if it were granted, have consented to it and are sui juris.
I now turn to the presumption of revocation. This presumption was described in Welch v Phillips in the following terms:[13]
…if a Will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. ...
[13] Welch v Phillips (1836) 12 ER 828, 829 cited by Griffith CJ and O’Connor J in the High Court in McCauley v McCauley (1910) 10 CLR 434, 438, 446.
In In the Estate of Gibbs, I made the following observations regarding the rebuttal of the presumption of revocation:[14]
The presumption of revocation is a presumption of fact which may be rebutted by appropriate evidence.[15] It is the applicant who carries the onus of rebutting the presumption.[16] Further, when determining if the presumption has been rebutted, the Court is “to consider the whole of the facts together, and draw what inference should be drawn from the totality of the evidence”.[17]
[14] In the Estate of Gibbs (2012) 114 SASR 182, [31].
[15] Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); see also, Colvin v Fraser (1829) 2 Hag Ecc 266; Welch v Phillips (1836) 1 Moo PC 299; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [32].
[16] Welch v Phillips (1836) 1 Moo PC 299, 302; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [34]; see eg, Allan v Morrison [1900] AC 604.
[17] Gordon v Beere [1962] NZLR 257, 266.
Another factor which is commonly considered in determining whether the presumption of revocation has been rebutted is whether the will makes a careful and complete disposition of the testator’s property. Campbell J in Cahill v Rhodes, drawing on the earlier decisions in Sugden v Lord St Leonards[18] and Finch v Finch,[19] relevantly observed:[20]
What Sugden v Lord St Leonards, and Finch v Finch, show is that if a testator has made a Will which makes a careful and complete disposition of his property, and an examination of the circumstances relevant to the Deceased's testamentary intentions between the time of the making of that Will and the time of his death does not reveal anything which shows that the testator had any reason to revoke the Will by destroying it, the strength of the presumption is weakened to such an extent that it is overcome. This is no more than a particular application of how the factual presumption can be overcome by circumstantial evidence which shows, on the balance of probabilities, that, even though the Will is missing at the testator's death, it is more likely than not that the reason for it being missing is something other than that the testator destroyed it with the intention of revoking it.
[18] Sugden v Lord St Leonards (1876) LR 1 PD 154.
[19] Finch v Finch (1867) LR 1 PD 371.
[20] Cahill v Rhodes [2002] NSWSC 561, [68]; see also, Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993).
In the present case, the propounded document does not make a complete disposition of the testator’s property. The will makes a gift of $1,000.00 to the Port Adelaide Football Club, but does not provide any disposition of the residuary estate.
However, other factors weigh in favour of rebutting the presumption of revocation. In her conversations with Mr and Mrs Steer, the deceased clearly expressed a belief that she had a valid will that provided for a gift of $1,000.00 to the Port Adelaide Football Club. If the deceased had intended to revoke the will, it is unlikely that she would have done so without informing Mrs Steer, her daughter.
For these reasons, I am satisfied that it is appropriate to make an order that the propounded document be admitted to probate and that a grant of probate be made to the applicants. It is to be noted that a grant of probate of the propounded document will give rise to a partial intestacy as to the residuary estate.